TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal is directed against the order dated 21st Oct. , 2003 by which the first appellate court after allowing the amendment of the plaint set aside the judgment and decree of the Trial Court dated 1st Sept. , 2001 and remanded the matter back to the Trial Court for deciding the suit afresh after framing the issues de novo. Learned counsel for the appellant submitted that the court below has committed serious illegality in allowing the amendment application because of the reasons that the appellants want to take absolutely contradictory plea by amending the plaint from the pleas, which they took originally. It is also submitted that the amendment has been sought by the plaintiff after inordinate delay and in view of the proviso added by amendment of the Civil Procedure Code to the Order 6 Rule 17 CPC, the amendment can be allowed by the court upon finding that even after due diligence, the party could not raise the matter before the commencement of the trial. In this case, the plaintiff sought amendment of the plaint after the decision of the suit by the Trial Court and further more, the plaintiff did not submit application for amendment of the written statement alongwith the memorandum of appeal. It is also submitted that facts were in the knowledge of the plaintiff from the time before filing of the suit itself. Therefore, the amendment should not have been allowed by the appellate court. Learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Shrimoni Gurdwara Committee vs. Jaswant Singh (1), and judgment of this court delivered in the case of Prem Chand vs. Thakurji Shri Adinathji I considered the submissions of learned counsel for the appellant and perused the record. It will be worthwhile to mention a few facts of the case of the plaintiff. The plaintiff filed the suit for declaration and injunction against the defendants-appellants alleging therein that the property situated as Ahata No. 29 having measurement of 77 1/2' x 50' at `b' Block of Gajsinghpura initially was the ancestral property of Polaram, Redaram and Birbalram. These persons sold the property to the plaintiff's father in the year 1965. The plaintiff's father invested money and constructed boundary wall and one small room. In the year 1981, the plaintiff raised constructions of Bedroom, kitchen, two Baramda and reconstructed the boundary wall. The plaintiff claimed that plaintiff is in possession of the property since last more than 12 years. It is also submitted that plaintiff also received notices from the Municipal Board of the area objecting raising of construction by the plaintiff. On these facts and when plaintiff was threatened by the defendants he filed the suit for declaration and injunction against the defendants. The defendants admitted about the identity of the property and further admitted that the property was originally belonging to Polaram, Redaram and Birbalram. However, defendants submitted that Polaram, Birbalram and Redaram died in the year 1947, 1945 and 1980 respectively. Therefore, no sale deed could have been executed by Birbalram and Polaram in the year 1965. The defendants are claiming themselves to be the descedents of the persons named above as owner of the property. However, the defendants admitted that plaintiff is in possession of the property and also impliedly admitted that if there is water and electric connection, those were taken by the plaintiff. According to defendants because of good relations between the plaintiff and the defendants and at the request of the plaintiff, the defendants gave possession of the property to the plaintiff in the year 1981 and, therefore, the plaintiff is in possession of the property. According to the defendants since it was a permissive possession and though more than 12 years have passed but the possession is not claimed to be hostile against the title of the defendants, therefore, the plaintiff cannot be declared as owner of the property on the plea of adverse possession. The defendants submitted counter claim and sought relief of decree for possession of the property from the plaintiff. In the Trial Court, the plaintiff produced the copy of the sale deed executed by Redaram, Dhanpatram and Rampartap dated 17. 05. 1962 by which the property in dispute was sold to Likhmichand and also produced copy of the sale deed executed by Likhmichand in favour of the plaintiff's father dated 24. 08. 1962. These documents were produced in court on 7th Oct. , 1997 and they were tendered in evidence on 23rd Jan. , 1999 and 15. 05. 1999.
(3.) THE Trial Court dismissed the suit of the plaintiff and decreed the counter claim of the defendants by judgment and decree dated 1st Sept. , 2001. Being aggrieved against the said judgment and decree of the Trial Court, the plaintiff-respondent preferred regular first appeal. In the appeal, the plaintiff submitted application to amend the plaint. THE plaintiff submitted that plaintiff's father expired in the year 1969 and at the time of death of plaintiff's father, the plaintiff was of the age of only 10 years. THE plaintiff submitted that he had no knowledge of the full facts about the title of the property. He obtained the certified copies of the sale deed on 27. 08. 1998 and 27th Sept. , 1998. THE plaintiff by amendment wants to plead that the property, whose identity is not in dispute, was in the ownership of Redaram, Dhanpatrai and Rampartap and they sold it to Likhmichand by registered sale deed dated 17. 05. 1960. Likhmichand sold the property to plaintiff's father by registered sale deed dated 24. 08. 1962. According to plaintiff since plaintiff had no knowledge of the true and correct facts, therefore, mistake crept in the pleading. THE plaintiff further pleaded that by amendment, the nature of the suit will not be changed and amendment will be in the interest of justice as plaintiff's original case is that his father purchased the property in dispute and become owner of the property and after amendment of the plaint the stand of the plaintiff will be same. THE first appellate court allowed the amendment holding that the plaintiff claimed themselves to be owner of the property and he claimed the title to the property as it was purchased by plaintiff's father. THE first appellate court considered the Ex. 22 and Ex. 24, sale deeds and held that by allowing amendment, the nature of the suit will not be changed and case of the defendants will not be prejudiced, rather by permitting the amendment, the court will be able to reach to the right conclusion. It is true that the plaintiff sought amendment after delay. The suit was filed in the year 1996. The documents came in the knowledge of the plaintiff in the year 1998. His evidence was recorded in the year 1999. In a matter of permitting amendment, the delay, normally is not a good ground for rejecting the application for amendment of the plaint. The facts mentioned above clearly reveal that the documents were already on record. The plaintiff's plea was there that his father purchased the property. who were the owner of the property is not in dispute in view of the admission of the defendants in the written statement itself. The purchase of the property by the plaintiff's father by a registered sale deed is the case of the plaintiff. He submitted the certified copy of the plaintiff. He submitted the certified copy of the sale deeds. Here in this case, plaintiff does not want to withdraw any admission made by him by amending the plaint. The plaintiff merely wants to explain the sequence by which plaintiff's father became owner of the property on the basis of the documents, which are not only on record, but has already been tendered in evidence by the plaintiff. The documents are registered documents and, therefore, it cannot be said that plaintiff wants to take some contradictory stand. The question relevant for the purpose of decision of the suit is whether the plaintiff's father was owner of the property by virtue of the sale deeds placed on record by the plaintiff. It will be worthwhile to mentioned here that the sale deed Ex. 22 is dated 17. 05. 1962 by which one Likhmichand is said to became owner of the property. The plaintiff's father purchased the property by sale deed Ex. 24, which is dated 24. 08. 1962. The plaintiff was of the age of 10 years at the time of death of his father. Likhmichand remained owner of the property for about three months only and in these circumstances, if the plaintiff stated that property was purchased by plaintiff's father directly from the persons named in the para No. 2 of the plaint and ignored to mention the fact relating to the sale of the property to Likhmichand and to the plaintiff's father by Likhmichand is a insignificant fact because Likhmichand remained owner of the property only for such a short period and the plaintiff neither born at that time or was minor and further he was minor at the time of death of his father. It is settled law that when technicalities of law are pitted against the justice, the justice should be given a way to march ahead. In view of the above seeking amendment of the plaint at belated stage, cannot be a ground to punish the plaintiff to the extent so that he may loose his immovable property only on such a technical objection of delay. ;